Software owner can modify the program for LIMITED purposes

Reproduction Right and Section 117

Section 117(a) permits the owner of a copy of a computer program to copy or modify the program for limited purposes without incurring liability for copyright infringement. It’s another potential point for defense, however Psystar did NOT plead it against Apple’s copyright claim, therefore waived its defense under it.

Court:

“Neither the answer nor interrogatory responses [of Psystar], however, refer to Section 117. AndPsystar has not demonstrated any good cause for its failure to assert the defense after a year of litigation. Also, there has been no showing that its failure to do so will not prejudice Apple. As such, Psystar has waived the defense.” [p5 21-24]

“Even if Section 117 is used, ‘the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused’.” [p5 24, p6 1-2]

“Psystar briefly mentions a Section 107 fair use defense but does not even attempt to address the four factors used to determine fair use. [p5 3-4] Psystar uses a mass production process, claiming fair use, but Psystar’s reliance on the case [they sited] is misplaced. ‘Psystar’s use of Mac OS X has been in excess and has violated Apple’s copyrights‘.” [p6 23]

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